Birth vs Merit. Kerala Temple Priests and the Courts Gilles Tarabout To cite this version: Gilles Tarabout. Birth vs Merit. Kerala Temple Priests and the Courts. Daniela Berti; Gilles Tarabout; Raphaël Voix. Filing Religion. State, Hinduism, and Courts of Law, Oxford University Press, pp.3-33, 2016, 978-0199463794. hal-01341078 HAL Id: hal-01341078 https://hal.archives-ouvertes.fr/hal-01341078 Submitted on 4 Jul 2016 HAL is a multi-disciplinary open access L’archive ouverte pluridisciplinaire HAL, est archive for the deposit and dissemination of sci- destinée au dépôt et à la diffusion de documents entific research documents, whether they are pub- scientifiques de niveau recherche, publiés ou non, lished or not. The documents may come from émanant des établissements d’enseignement et de teaching and research institutions in France or recherche français ou étrangers, des laboratoires abroad, or from public or private research centers. publics ou privés. [Published in Daniela Berti, Gilles Tarabout, and Raphaël Voix (eds), Filing Religion. State, Hinduism, and Courts of Law. New-Delhi, Oxford University Press: 3-33] /p.3/ [Chapter 1] Birth vs Merit. Kerala Temple Priests and the Courts Gilles Tarabout [National Center for Scientific Research (CNRS), Center for Ethnology and Comparative Sociology (LESC)]* In recent years, men born into various non-Brahmanical castes, including former ‘untouchables’, have been appointed as priests at Brahmanical public temples in Kerala. The constitutionality of such appointments has been challenged and was eventually upheld by the Supreme Court in 2002. This decision, I suggest, has to be seen as the outcome of developments by which the courts came to define priesthood in terms of technical procedures performed by expert, but ‘secular’ persons, i.e. employees selected solely on merit. Such a legal understanding, however, conflicts with widely held expectations about priesthood in terms of birth qualifications. Birth equality for temple priestly services, I argue, has now become a possible legal claim as a result of the progressive administrative ‘rationalization’ of Hindu religious institutions through State action, and because it also meets for various reasons with political consensus. /p.4/ To allow those persons who are not born Brahmans to become priests at Brahmanical temples requires that judges address a wide range of religious issues. They have relied on previous cases in which courts established themselves as paramount arbitrators of what ‘true’ religion is, and, at times, as active reformers of Hindu practices (Galanter 1971; Fuller 1988; Sen 2010). This role, for which there were precedents during the colonial period, is legitimated by the vision of secularism projected by the Constitution. Religious freedom guaranteed by Articles 25 and 26 is subject to various limitations: the respect of ‘public order, morality, and health’ (Art. 25(1)) (a recurrent consideration justifying the action of the courts in religious matters―Derrett 1999: 495, 512; Bhagwati 2005: 45); or the duty of the State to regulate and restrict ‘any economic, financial, political or other secular activity which may be associated with religious practice’ (Art 25 (2)(a)). While the Constitution concedes more * This chapter was earlier presented as a paper during the international workshop Religion in the Courts (India, Nepal) [organized in Paris on 18-19 June 2012 as part of the programme Justice and Governance in Contemporary South Asia (‘Just-India’) funded by the French National Research Agency (programme ANR 08- GOUV-064)]. I am grateful to Daniela Berti, Catherine Clémentin-Ojha, Christopher Fuller, Christophe Jaffrelot and Chiara Letizia for their comments on a draft of this chapter. 1 autonomy to so-called ‘religious denominations’ (Art. 26), a category left for the courts to define, it gives the State a general mandate for providing social welfare and reform, and for eradicating social evils such as untouchability. There is therefore an inbuilt tension in the Constitution between ‘non interference’ in religious matters and the State’s duty to introduce social reform (Baird 2005: 18, 33), with the latter assuming preeminence: in Tahir Mahmood’s words (2006: 756), ‘in India, the law of the land determines the scope of religion in society; it is not religion that determines the scope of the law; […] but any “wall of separation” between religion and state exists neither in law nor in practice.’ This has led to greater State control of the main temples in India, a process by which religious endowments are sometimes described as being ‘nationalized’ (Dhavan 2001: 315)―though this process is actually more extensive in the southern states than in the north of India.1 /p.5/ The development of a modern judicial order has been decisive in this takeover of temples in the name of a better administration (Reiniche 1989: 166). The history of this process, which started in the early 19th century, has been studied in detail, particularly in Tamil Nadu (Mudaliar 1974; Breckenridge 1977; Appadurai 1981; Presler 1987; Reiniche 1989; Fuller 1991, 2003; Frykenberg 2001; Chatterjee 2011). Here scholars have shown that the British administrative machinery penetrated ‘deeply and systematically’ into the regulation of religious institutions (Presler 1987). From 1801, revenue authorities could exercise control over temple servants and staff: ‘unwittingly, perhaps, revenue and judicial authorities, therefore, came to determine who qualified for what in the temple’ (Breckenridge 1977: 97). This had far-reaching effects since the Government in Madras was in charge of some 7,600 Hindu shrines in 1833 (Chatterjee 2011: 61). The subsequent will of the British Government not to appear to participate in the management of Hindu temple activities, following Christian protests in Great Britain, led to confer on the courts a preponderant role, so much so that, by the end of the nineteenth century, they had become ‘the state’s central agency in temple matters’ (Presler 1987: 25). This in return prompted new criticism, leading to the constitution of a Hindu Religious Endowment Board in 1926 in Tamil Nadu, a model that influenced the constitution of similar Boards that are now to be found throughout India. While administrative bodies and the courts may have diverging notions of the temple, or temple ‘theories’ (Presler 1987: 59),2 they have all developed an idealist and elitist view of religion as a ‘spiritual’ realm set apart from everyday life and turmoil (Bhagwati 2005: 41; /p. 6/ Presler 1987: 53, 111ff.). They all concur in the view that a ‘religious atmosphere’ is to be achieved by the correct performance of rituals, informed by textual evidence, by competent priests (a ‘Weberian rationalization’―Fuller 2003: 159). Considerable attention has thus been given to the qualification of temple priests, and their formal religious education is an increasingly important criterion regarding their employability (Fuller 1997, 2003; Presler 1987: 46ff.). 1 This has met with some resistance, even in the southern states, as borne out by the long-standing dispute between the Podu Dikshitars, in charge of the famous Nataraja temple in Chidambaram, and the Tamil Nadu Government―for recent developments, see A. Srivathsan (2014); Venkatesan (2014); Arulmigu Vaithianathaswamy... vs The Government Of Tamil Nadu, W.P.No.9594 of 2014 and M.P.No.1 of 2014, Madras High Court, 11 April 2014. 2 I rely on Presler’s discussion (1987: 37ff.) about the notion of ‘theory conflict’, where ‘theory’ is understood as a ‘cluster of ideas and sentiments’ which functions as an ‘operative ideal’, a formulation introduced by Samuel H. Beer in his analysis of political representations in British society: ‘Over the past two hundred years in Britain, the representation of interests has taken several forms. Each of the principal forms has been associated with a cluster of ideas and sentiments toward government and society in general and toward representation in particular. Such a cluster we may call a theory providing we understand by “theory” not necessarily the product of a political philosopher, but rather an operative ideal of people in politics.’ (Beer 1957: 613-14) 2 This emphasis on qualification based on education is at odds with the former logic of appointing priests from specific families or castes. Using court cases, the present paper will illustrate how this issue recently developed in Kerala. Judicial decisions have run counter to the very idea of birth qualification for priesthood, which is a radical departure from widespread Hindu conceptions of personhood. This departure is in fact in keeping with the Constitution (Coward 2005) and the courts have implemented the constitutional mandate step by step with the support of most political parties, including Hindu nationalists. In this contribution, I set out to discuss documents available on the internet, mostly from Kerala High Court (hereafter KHC). As will soon become clear, these judgments do not merely have local consequences, they also confirm extensive changes at the national level that have already been identified by scholars. The chapter is divided into three parts according to a logical, and not chronological order. I begin by underlining the contractual dimension of priesthood and the ‘secular’ nature of priests-as-persons as exemplified in a KHC case decided in 2008. In a second part, I come back to earlier decisions that illustrate various aspects of an ‘employer‒employee’ relationship as exemplified in the recruitment